When Is Something a Title IX Issue and When Is It Not?

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There has been a lot of attention given to Title IX in recent months, due in no small part to the atrocities perpetrated by Larry Nasser at MSU and the ensuing criminal prosecutions. And while the spotlight on East Lansing may give us the feeling that Title IX compliance is really a university-level issue, its mandates also fully apply to the K-12 setting. To that end, school district administrators have been wrapping their heads around Title IX compliance to understand both what it takes to stay on the right side of the law and to ensure that students feel safe and supported in school in a manner contemplated by Title IX. However, with increased awareness often comes confusion. As we work to ensure compliance with Title IX, how do we distinguish between what is a Title IX issue and what is not? Some insights and clarification are needed.

Let's start with Title IX, which is federal litigation that was passed in 1972. The purpose of the law is simple: no person, on the basis of sex (or gender or perceived gender), shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. That's a lot of lawyerly words to express a simple sentiment – we don't want discrimination based on sex in schools. That, of course, seems reasonable. After all, schools certainly do not want to encourage or appear indifferent to sex-based discrimination. Moreover, Title IX provides that if there is discrimination in schools based on sex, the federal government can, among other actions, take away your federal funding.

In this environment, districts fear that they might run afoul of Title IX if they end up failing to recognize when an issue falls under Title IX and, therefore, requires a full-blown Title IX investigation. Indeed, district administrators are now being bombarded daily with allegations of "Title IX" resulting in them spending considerable time and resources – which are already scarce – to investigate claims. But it doesn't seem possible that everything that arises in a given day is a Title IX issue.

To lock-in on Title IX's requirements, school personnel need to focus on the on the actual language of Title IX and remind themselves that it applies only to sex-based or gender-based bullying and harassment (for ease, we'll refer to it mostly as "sex-based bullying"). Title IX does not refer to bullying and harassment in the general sense, but in terms of when those activities are premised on sex. So, the next question is this: when is bullying or harassment sex-based?

First, let's discuss what is not sex-based bullying or harassment: a male student bullying a female student (or vice-versa) is not, by itself, sex-based bullying. A heterosexual student bullying a transgender student is not, by itself, sex-based bullying. Instead, we need to look at the substance or topic of the bullying. If the substance or topic is sex- or gender-specific, is a comment or criticism on the victim's sex/gender, or relates to how the victim either does or does not comply with sex and gender expectations, stereotypes, and "norms," the bullying likely falls under Title IX.

Let's look at an example: Mark constantly makes fun of Katie's dirty shoes, ripped clothing, and rumors that her family is poor. Are bullying remarks about a student's family's perceived wealth based on the victim's sex or gender? No. Are bullying remarks about a student's family's perceived wealth based on societal expectations, stereotypes, and norms for male and female students? No. If Katie was not Katie but was, instead, Keith, are Mark's remarks transformed into remarks about Keith's gender or sex? No. In this case, Mark's bullying does not fall under Title IX because the substance or topic of the bullying is completely unrelated to the victim's gender or sex.

Let's look at another example: Mark constantly makes fun of Katie for being gay and dating another girl. Are harassing and bullying remarks about the gender of a student's dating partner based on the victim's sex or gender? Yes. After all, it would be nonsensical for Mark to harass Andrew for dating a girl just because she was a girl (so long as Mark knew Andrew was heterosexual). Therefore, the harassment falls under Title IX.

Remember: ask yourself whether the topic or substance of the bullying or harassment is gender or sex specific, whether it includes comments or criticisms about the victim's sex/gender, and whether it relates to the how the victim either does or does not comply with sex and gender expectations, stereotypes, and norms. If so, Title IX applies and a full Title IX investigation should be conducted.

An important final note here – there is no such thing as "over-investigating." School districts have an obligation, legally and ethically, to examine situations when they arise and to root out and address all forms of discrimination and harassment. This article is provided to draw the line between Title IX compliance and "other" compliance. If you think an issue might be a Title IX issue but you are not sure, it certainly doesn't hurt to investigate it within the construct of the district's Title IX policies and procedures. In the same breath, recognize that not every claim of a "Title IX" issue is necessarily Title IX-related. If all else fails, consultation with your district's legal counsel is always a good thing.